Saturday, June 7, 2014

BERGDAHL MESS

Trying
to answer the question of whether the Bergdahl prisoner swap was or was not
legal, I waded into the murky waters of federal legislation.

Typically
of the way Washington works, the controlling law is contained in a massive
omnibus bill that runs something like 211,214 words and includes literally
thousands sections dealing with all kinds of matters.

Apparently
the legal dispute here involves section 1035 of theNDAA – the National Defense Authorization
Act, whichauthorizes various
expenditures of public funds in 2014.

Here is
what the section provides:

(Sec. 1035) Authorizes the Secretary to transfer or release any
individual detained at Guantanamo to such individual's country of origin or
another country if: (1) the Secretary determines that the individual is no
longer a threat to national security, or (2) such transfer or release is to
effectuate an order by an appropriate U.S. court or tribunal. Requires, as
further determinations prior to such transfer, that: (1) actions have been
planned or taken that will substantially mitigate the risk of such individual
engaging or reengaging in any terrorist or hostile activity that threatens the
United States, and (2) the transfer is in the U.S. national security interest.
Outlines factors to be considered in making such determinations, including any
confirmed cases of recidivism of individuals previously transferred to such
country. Requires the Secretary, at least 30 days prior to such a transfer, to
notify the defense, appropriations, and intelligence committees. Defines a
detained individual as one located at Guantanamo as of October 1, 2009, who is
not a U.S. citizen and is in the custody or control of DOD or otherwise under
detention there. Repeals superseded authorities..

Section 1035 allows the Secretary of the Navy, who in is charge
of Gitmo, to release detainees to their country of origin or some other foreign
country, if he decides the person is no longer a threat to national security,
and if the transfer is in the national interest, after taking into
consideration whether others released to that country resumed their terrorist
activities. It further requires the Secretary to notify defense, appropriations
and Intelligence committees of the Congress at least 30 days before making the
transfer.

The Secretary of the Navy is a man named Ray Mabus. A graduate
of the Harvard Law School, Mabus was the Governor of Mississippi and served as
Ambassador to Saudi Arabia under President Bill Clinton. He was appointed
Secretary of the Navy by President Obama in 2009.

Now here’s the way I read the Bergdahl case: if the President of
the United States instructed the Secretary of the Navy to release five Gitmo
detainees forthwith, the Secretary should have refused to do so without giving
Congress thirty days notice as required by the law.

If the President insisted, the Secretary should have resigned.
If the President simply by passed the Secretary and issued a direct order to
the Gitmo Commandant, there are other questions. The best I can figure, that
would involve Rear Admiral David B. Woods, Commander of JTF_GTMO the joint task
force in charge of the Guantanamo facility.

Of course, Woods ought to have respectfully declined the
President’s order, insisting that he be instructed through the proper chain of
command.

Now, I suppose there is a question of whether the President, by
instructing the Secretary of the Navy to violate the law, is guilty of an impeachable
offense.

That would depend on the nature of the directive from the
President to the Secretary. Did Obama tell Mabus to release the prisoners
without giving Congress the thirty day notice? When was prisoner exchange deal
made? Was Mabus aware of it soon enough to give the required notice?

I have the feeling that the whole matter is a juicy subject for
Congressional investigation, with the full array of hearings and charges of
partisan nit picking.

Who said what to whom? And when? Who decided not to tell the
committees? The answers will come from both sides of the aisle, and we will
have another partisan circus in the nation’s capital.

The thirty day rule is a procedure. A nit to pick. It avoids and
complicates the real issue.

The sad
fact is that the American people are left to debate whether Bergdahl should
have been brought home by releasing five detainees, which brings up the whole
question of “detainees.”Are they
prisoners of war? If so, what war? Who declared a war? Who are we at war
against? Are these detainees soldiers or criminals? If they are soldiers, what
nation do they fight for? If they are prisoners of war, and the war is over,
they should all be sent home. If they are criminals, what crimes have they
committed and have they been convicted and sentenced? If they are criminals,
they should be brought to justice, in a civilized, constitutional manner.

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